Bombay High Court
The Ex. Engineer, M.I.W. Jalgaon vs Alka Ravindra Nakade And Ors on 8 February, 2021
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
17 CIVIL APPLICATION NO. 14780 OF 2019
IN FAST/36427/2019
THE EX. ENGINEER, MIW JALGAON
VS
ALKA RAVINDRA NAKADE AND ORS
Mr. Subhash S. Chillarge, Advocate for the applicant
Mr. A. A. Jagatkar, AGP for the respondent/State
WITH
CIVIL APPLICATION NO. 14776 OF 2019
IN FAST/36165/2019
THE EX. ENGINEER, MIW JALGAON
VS
RAMCHANDRA LAXMAN WAGHULDE (DIED)
THR LRS NARENDRA AND ORS
Mr.Subhash S. Chillarge, Advocate for the applicant
Mr. Vijay P. Patil, Advocate for respondent Nos. 1 to 5
Mr. A. A. Jagatkar, AGP for the respondent/State
WITH
CIVIL APPLICATION NO. 14778 OF 2019
IN FAST/36434/2019
THE EX. ENGINEER, MIW JALGAON
VS
REKHA RAVINDRA MAHAJAN AND ORS
Mr. Subhash S. Chillarge, Advocate for the applicant
Mr. Vinod Patil, Advocate for respondent No.1
Mr. A. A.Jagatkar, AGP for the respondent/State
WITH
CIVIL APPLICATION NO. 14784 OF 2019
IN FAST/36423/2019
THE EX. ENGINEER, MIW JALGAON
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VS
REKHA RAVINDRA MAHAJAN AND ORS
Mr. Subhash S. Chillarge, Advocate for the applicant
Mr. Vinod Patil, Advocate for respondent No.1
Mr. A. A.Jagatkar, AGP for the respondent/State
WITH
CIVIL APPLICATION NO. 14786 OF 2019
IN FAST/36559/2019
THE EX. ENGINEER, MIW JALGAON
VS
RAVINDRA KASHIRAM MAHAJAN AND ORS
Mr. Subhash S. Chillarge, Advocate for the applicant
Mr. A. A.Jagatkar, AGP for the respondent/State
WITH
CIVIL APPLICATION NO. 14782 OF 2019
IN FAST/36431/2019
THE EX. ENGINEER, MIW JALGAON
VS
ATUL SITARAM MAHAJAN AND ORS
Mr. Subhash S. Chillarge, Advocate for the applicant
Mr. A. A. Jagatkar, AGP for the respondent/State
CORAM : V. L. ACHLIYA, J.
DATE : 08-02-2021
P. C.
. The applicants has moved these applications seeking
stay to the execution of awards passed by the Reference Court.
2. In brief, it is the contention of the learned counsel for
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the appellant that the awards passed by the Reference Court are
not legally sustainable in law. It is submitted that the Reference
Court has passed the awards thereby enhanced the compensation
on account of fruit bearing trees exorbitantly. There is no evidence
to support such huge assessment. The learned counsel tendered
the chart of the enhancement of compensation by the Reference
Court in the award under challenge, which is taken on record and
marked as 'X' for identification. As per the chart the enhancement
made by the Reference Court in comparison to award passed by the
Special Land Acquisition Officer shown to be under:-
Sr. FAST LAR Amount Amount Difference
No Nos. Nos. Awarded awarded by
. by LAO Ref. Court
1 36165/19 31/18 2,07,231 11,71,750 9,64,537
2 36560/19 32/18 20,50,972 88,87,046 68,36,074
3 36431/19 371/1-A 19,53,280 1,33,16,227 1,14,73,917
4 36427/19 34/18 20,85,481 1,29,99,447 1,10,24,966
5 36423/19 35/15 20,90,559 1,23,82,411 1,04,06,932
6 36434/19 39/18 34,81,147 1,80,68,380 1,48,42,583
3. By referring the judgment and order passed by the
Reference Court, learned counsel submits that the reasons and
findings recorded by the Reference Court are perverse and contrary
to its own observations. It is pointed out that the Reference Court
has observed that as per the experts report in 1-R of land there can
be plantation of six trees. However, while awarding the
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compensation in LAR No. 33/2018, (Matter of FA No.36431/2019)
the Reference Court has awarded the compensation in respect of
648 trees though the land acquired. Similarly, in FAST No.
36560/2019, as per the standards of six trees in 1-R of land there
could have been not more than 510 trees in the land acquired the
compensation awarded still in respect of 630 trees. Similarly, FAST
No. 36427/2013 though over 81-R of land at the most there 466
trees to be in existence the Reference Court has awarded the
compensation in respect of 680 trees. Same is the position in
respect of FA No. 6642/2019. By referring the impugned judgment
and awards award the learned counsel submits that in the awards
there is no discussion as to how the compensation to be assessed
per trees has been discussed. There is no discussion as to valuation
of the trees made by the alleged expert. In para 6 of the judgment
though it is mentioned that only claimant is examined but in
discussion made as to assessment of compensation there is
reference of report of the valuer. There is no discussion as to age of
trees, life span of the trees, the yearly yield and earnings per trees
to be received by claimant. Learned counsel further pointed out
that interest has been awarded from the date of notification under
Section 4 of the Land Acquisition Act which is contrary to the full
bench decision of this court in the case of State of Maharashtra Vs
Kailash Shiva Rangari reported in 2016(3) Mh.L.J. 457. It is pointed
out that though in the e-statement there is no reference of
existence of mango trees, in some of the cases the existence of the
trees have been shown by way of report of joint measurement.
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4. I have carefully considered the submissions advanced in
the light of judgment and order passed by the Reference Court. In
my view, there is arguable case to be considered in appeals. The
judgments and orders passed by the Reference Court prima-facie
appear to be cryptic and perverse. Although in the judgment it is
mentioned that the claimant alone examined in the case but while
recording the reasoning there is reference of report of expert. It is
doubtful as to whether the expert has been examined in each of the
cases and the report of the expert proved by the claimant. The
cases are to be decided on the basis of facts of the individual cases
and evidence adduced to support the case. The evidence adduced
in the connected cases cannot be referred and relied for decision of
the another case unless the facts of case are identical and common
evidence adduced in such cases. In this behalf learned counsel for
the applicants has rightly placed reliance upon the decision of the
Hon'ble Apex Court in the case of SLP (Civil) No. 11433/2019
Executive Engineer, MIW Vs Vitthal Damodar Patil and anr wherein
para No. 13 the court has observed as under:-
"13. The judgment essentially deals with that
contention. Indeed, the reported decision has
adverted to the observation made by the Reference
Court concerning the testimony of Mr. Ravindra
Ghanshyam Chaudhari, who is the same witness.
That has been noted in paragraph 11 of the reported
judgment. The Court, no doubt, in paragraph 22 of
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the reported decision, has noted that there was no
reason to discard the valuation report of Mr. Ravindra
Ghanshyam Chaudhari. However, what is significant
to bear in mind is that neither the Reference Court
nor this court in the aforesaid decision was called
upon to consider the question about the eligibility
and competency of the witness examined by the
claimants. That issue has been specifically raised by
the appellant in the present case, relying on the
purported admission of the witness. Whether this
contention raised by the appellant deserves
acceptance or otherwise, is a matter which ought to
have been examined at least by the High Court on its
own merits. In other words, the reported decision is
of no avail because every reference proceeding must
be decided on the basis of the evidence produced and
the issues raised by the parties in the concerned
proceeding. Thus, the evidence of the witness
examined by the claimants and the analysis thereof
by this court in some other reference case arising
from an independent notification issued in earlier
point of time concerning another village/taluka
cannot be the basis to mechanically hold that since
the valuation report has been prepared by the same
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witness, it must be accepted as duly proved in all
respects in the reference under consideration, moreso
in respect of the justness of the valuation of the
subject property."
5. Manner in which the references have been decided
reflects counsel's approach and non-application of mind. There is
absolutely no discussion as to evidence of the expert examined in
the case and how the court has made the valuation to enhance the
compensation on account of trees. The findings of the court are
contrary to observations made that in 1-R of land at the most six
trees can planted. However, the court has granted the
compensation in respect of 680 trees though the 81-R of land
acquired. In view of challenges raised in the appeals, I am of the
view there is arguable case to be considered in appeals. Hence, till
the other side heard in the matter, ad-interim order needs to be
passed. Hence, the following order:
ORDER
i. Issue notice to the respondents, returnable on 05-
04-2021.
ii. Mr. Vijay Patil, Advocate and Mr. Vinod Patil,
accept notice for the respondents in respective appeals
and seeks time to file reply. Learned AGP waives service
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of notice for the respondent/State.
iii. Pending hearing and disposal of the applications
filed in respective appeals, there shall be interim stay in
terms of prayer clause-B in respective applications
subject to deposit of amount to the extent of 25% of
compensation awarded by the Reference Court in
respective awards under challenge in respective
appeals.
[ V. L. ACHLIYA, J. ]
VishalK/ca14780.19
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